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State of Ohio v. George L. Dingess

November 3, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
GEORGE L. DINGESS, SR., DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 07CR-08-6217)

The opinion of the court was delivered by: Connor, J.

Cite as State v. Dingess,

(REGULAR CALENDAR)

DECISION

{¶1} Defendant-appellant, George L. Dingess, Sr. ("appellant"), appeals from a judgment entry of conviction entered following a jury trial in the Franklin County Court of Common Pleas in which he was convicted of three counts of possession of drugs. For the reasons that follow, we affirm that judgment.

{¶2} On August 27, 2007, appellant was indicted for three drug offenses: possession of crack cocaine as a felony of the first degree, possession of powder cocaine as a felony of the fourth degree, and possession of marijuana as a felony of the third degree. On July 9, 2009, appellant filed a motion to suppress evidence obtained as a result of the issuance of a search warrant executed at 1946 Fountain View Court, Apartment C, in Franklin County, Ohio. The motion raised four challenges: (1) there was no probable cause to support the issuance of the search warrant; (2) the search exceeded the scope of the warrant; (3) the judge who authorized the search failed to make an independent evaluation as to probable cause; and (4) the executing officers failed to make a proper return of the items seized under the warrant.

{¶3} On December 9, 2009, a hearing was held on the motion to suppress. The State of Ohio ("the State") introduced the testimony of Whitehall Police Sergeant Dennis Allen, who had prepared the affidavit used to obtain the search warrant. In the affidavit, Sergeant Allen averred he had been advised by a confidential informant that an individual known as "Dog" was selling crack cocaine from 1946 Fountain View Court, Apartment C. "Dog" was identified as appellant. Based upon this information, Sergeant Allen set up surveillance on the apartment and subsequently observed a vehicle pull up to the area of the apartment and watched a black male exit the vehicle and enter the apartment. A short time later, that same male exited the apartment, followed by appellant. The two men conversed in the parking lot and then appellant re-entered the apartment and the black male returned to the vehicle, which then drove away.

{¶4} According to the affidavit, the police followed the vehicle to 4691 Janis Drive. The black male entered that residence and the vehicle again drove away. The vehicle was subsequently stopped by police and the two individuals inside the vehicle were arrested. Both of those individuals advised Sergeant Allen they had given the black male money to buy drugs and that they went to the Fountain View apartment to purchase crack cocaine. One of the individuals also informed Sergeant Allen that the crack cocaine found in the crack pipe recovered from one of the vehicle occupants had been purchased at the Fountain View apartment.

{¶5} At the hearing, Sergeant Allen testified he prepared the request for a search warrant based upon a tip he received from a confidential informant who indicated appellant was selling crack cocaine and marijuana out of his residence. The confidential informant showed the residence to Sergeant Allen. Sergeant Allen testified he set up surveillance on the apartment, and later witnessed what he believed to be a drug transaction when a black male, later identified by the street name of "Animal," exited a vehicle, entered the apartment, and then exited the residence a short time later with appellant. After a few minutes of conversation, "Animal" left in the vehicle.

{¶6} According to Sergeant Allen's testimony, the police followed the vehicle as it left the parking lot of the apartment complex. The vehicle drove to another location on Janis Drive where "Animal" exited the vehicle. Upon leaving that location, the vehicle was stopped by police, who then spoke with the occupants of the vehicle. The occupants were a white female and a white male, identified as Christine Ward ("Ward") and Glen Burney ("Burney"), respectively. Both of them reported they drove to the apartment to buy crack cocaine. As a result of this information, Sergeant Allen testified he went before Judge Green to request a search warrant. Sergeant Allen further testified all of the facts presented were stated in the search warrant affidavit and there was no other testimony provided upon which Judge Green could base his decision of whether or not to grant the search warrant request.

{¶7} Sergeant Allen further testified he obtained the search warrant and drove to the Fountain View Court apartment to assist in executing the search. Appellant was observed leaving the apartment in a vehicle and was subsequently stopped. When police entered the apartment, there was a female present who claimed to be a guest of appellant. The police seized narcotics from the apartment, as well as other items to be used to establish residency, since appellant claimed during the execution of the search warrant that he did not live at the apartment. Among the items seized were several toothbrushes and combs.

{¶8} At the end of the motion hearing, the trial court overruled appellant's motion to suppress. The trial court provided three reasons for doing so. First, the trial court determined the affidavit provided probable cause to search the apartment, based upon the information he received from the informant, combined with Sergeant Allen's own surveillance observations at the apartment. Second, the trial court determined appellant lacked standing to challenge the stop of the vehicle after it drove away from the Janis Drive residence. Third, as to the scope of the warrant, the trial court found the seizure of the toothbrushes was not an indiscriminate seizure because the establishment of residency was directly related to the drug charges, and thus, the seizure of the toothbrushes was within the scope of the warrant.

{¶9} Several months after the court's ruling denying the motion to suppress, the matter proceeded to a jury trial. At trial, Sergeant Allen testified he conducted surveillance on the Fountain View Court apartment prior to executing the search warrant. He observed appellant leave the apartment and drive away, so he instructed another officer, John Earl, to conduct a traffic stop. Officer Earl stopped appellant's vehicle. A search of appellant produced four bags of marijuana, which were recovered from his back pocket. Police also located $217 on appellant's person, as well as a key later discovered to open the front door to the Fountain View Court apartment. After he was arrested, appellant was advised the police had a search warrant for the Fountain View Court apartment. However, appellant stated it was not his apartment.

{¶10} Officers knocked at the apartment door to execute the search warrant and were greeted by a woman identified as Sharise Clinton. Upon searching the apartment, the officers discovered: four baggies of crack cocaine in the kitchen freezer; one baggie of crack cocaine along with a loose piece of crack in a kitchen drawer; one baggie of powder cocaine in a kitchen drawer; 14 baggies and one large baggie of marijuana in the refrigerator; and some loose marijuana in the bedroom closet and on the kitchen counter. In total, the police recovered 99.7 grams of crack cocaine, 9.7 grams of powder cocaine, and over 1,202 grams of marijuana. The police also recovered walkie-talkies, a scale, and $1,295 in cash in a jacket located in a bedroom closet.

{¶11} In addition, the police collected various receipts, a work order, utility bills, and a paystub from the apartment, all of which were in the name of Natasha Felts. However, the apartment did not contain other indicia to suggest that a female lived in the apartment, as all of the clothing in the apartment were men's clothing.

{¶12} Following appellant's arrest, Sergeant Allen transported appellant to a jail cell at the Whitehall police department. As Sergeant Allen escorted appellant past one of the cells, appellant looked toward the cell and stated, "I see somebody ratted me out." (Tr. 89.) Sergeant Allen acknowledged that he did not reference this statement in his U10-100 report, which he testified was prepared for the purposes of relaying information about appellant and the alleged offense to the county jail and for arraignment. However, Sergeant Allen testified the statement was documented in his investigative summary included in the grand jury packet.

{¶13} Testimony and evidence produced at trial revealed that Bureau of Motor Vehicle ("BMV") records showed defendant listed at a Reynoldsburg address and the vehicle-impound form executed upon appellant's arrest listed a Canal Winchester address. Because appellant had denied living at the Fountain View Court apartment, Sergeant Allen testified the police also collected three toothbrushes and two combs from the bathroom of the apartment in order to establish residency. A DNA swab was also obtained from appellant. All of those items were sent to the Bureau of Criminal Identification and Investigation ("BCI&I") for testing and comparison.

{¶14} Forensic scientist Emily Draper testified she tested two of the toothbrushes seized from the Fountain View Court apartment and concluded appellant could not be excluded as the source of the DNA found on those two toothbrushes. Pursuant to BCI&I policy, Ms. Draper would not testify that appellant was a definitive match for the DNA extracted from one of the two toothbrushes tested. However, Ms. Draper testified the expected frequency of occurrence of that DNA profile occurs in 1 in 847.5 quintillion unrelated individuals. She further testified no other DNA was found on the two toothbrushes tested. In addition, Ms. Draper acknowledged she did not test the third toothbrush or the two combs that were submitted once she concluded appellant could not be excluded as the source of the DNA on two of the toothbrushes.

{¶15} Additionally, Sergeant Allen testified there was no fingerprint evidence to link appellant to any of the items recovered from the apartment.

{¶16} Appellant was found guilty of all three drug offenses. The trial court imposed a total prison sentence of six years, to run consecutively to a separate, unrelated federal prison sentence.

{¶17} Appellant now files this timely appeal and raises five assignments of error for our review:

ASSIGNMENT OF ERROR NO. 1:

A TRIAL COURT ERRS WHERE IT DENIES A MOTION TO SUPPRESS EVIDENCE IN A CASE WHERE THE SUPPORTING AFFIDAVIT LACKS SUFFICIENT FACTS TO ESTABLISH PROBABLE CAUSE.

ASSIGNMENT OF ERROR NO. 2:

A TRIAL COURT VIOLATES A DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT ALLOWS THE GOVERNMENT TO STACK EVIDENCE YET TO BE ENTERED IN THE RECORD ON A TABLE FOR THE JURY PANEL TO ...


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